Davis v. Austin

• Citation: 156 S.W.2d 903,348 Mo. 1094
• Decision Date: 16 December 1941
• Docket Number: 37716
• Parties: Arch B. Davis, Executor of the Estate of W. W. Davis et al., Plaintiffs-Respondents, v. W. E. Austin, Administrator with the Will annexed of the Estate of E. M. Harber et al., Defendants-Respondent, A. M. Dockery, Intervenor-Appellant
• Court: United States State Supreme Court of Missouri

156 S.W.2d 903

348 Mo. 1094

Arch B. Davis, Executor of the Estate of W. W. Davis et al., Plaintiffs-Respondents, v. W. E. Austin, Administrator with the Will annexed of the Estate of E. M. Harber et al., Defendants-Respondent, A. M. Dockery, Intervenor-Appellant

No. 37716

Supreme Court of Missouri

December 16, 1941

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Ruth C. Woodruff and George E. Woodruff for appellant.

(1) This is strictly an action in equity. Coffman v Gates, 142 Mo.App. 648, 121 S.W. 1078; Rhodus v Geatley, 147 S.W.2d 631. (2) Here the judgment is interlocutory. The petitioner, whether or not he was in court and under its jurisdiction, had a right to have the interlocutory judgment amended to protect his right. This can be done on his application or whenever it appeared to the court, by any means or in any manner, that his rights were involved. In actions of partition and to quiet title and in equity, the court is careful to see to it that all interests shall be brought before the court and disposed of. Lees Summit Bldg. & Loan Assn. v. Cross, 134 S.W.2d 19; McQuitty v. Steckdaub, 190 S.W. 590; Remmers v. Remmers, 239 S.W. 509; Goings v. Shafer, 253 S.W. 133, 214 Mo.App. 419; Carson v. Hecke, 282 Mo. 580, 222 S.W. 850; Lilly v. Menke, 126 Mo. 190, 28 S.W. 643; Johnson v. Johnson, 170 Mo. 34, 70 S.W. 241, 59 L. R. A. 748; Harper v. Hudgings, 211 S.W. 63; Thomas v. Black, 113 Mo. 66, 20 S.W. 657; State ex rel. v. Wolfe, 122 S.W.2d 909; White v. Kentling, 134 S.W.2d 39; Hiles v. Rule, 121 Mo. 248, 25 S.W. 959; Lortz v. Rose, 145 S.W.2d 385; Keller v. Keller, 92 S.W.2d 157, 338 Mo. 731; Parkinson v. Caplinger, 65 Mo. 290; Warren v. Williams, 25 Mo.App. 22; Aull v. Day, 133 Mo. 337; McMurtry v. Glasscock, 20 Mo. 432; Bobb v. Graham, 89 Mo. 207; Akers v. Hobbs, 105 Mo. 127; Murray v. Yates, 73 Mo. 13; Bryant v. Russell, 127 Mo. l. c. 433; Ess v. Griffith, 128 Mo. l. c. 60; Hart v. Steedman, 98 Mo. l. c. 457; Holloway v. Holloway, 103 Mo. l. c. 284; Fogle v. Pindell, 248 Mo. 65, 154 S.W. 81; State v. Bandall, 220 Mo.App. 1222, 299 S.W. 159; Carter v. Mills, 30 Mo. 432; Bondurant v. Mills, 294 S.W. 742; Wolf v. Vette, 17 Mo.App. 36; Byars v. Howe, 276 S.W. 43; White v. Kentling, 134 S.W.2d 39; Scoggin v. Goff, 137 S.W.2d 694; Sec. 1055, R. S. 1939; Bush v. Block, 187 S.W. 153, 193 Mo.App. 704; Wellman's Admr. v. Dismukes, 42 Mo. 101; Rayburn v. Mitchell, 106 Mo. 365; Pratt v. Walther, 42 Mo.App. 491; Hilton v. St. Louis, 99 Mo. 199; Schooler v. Patrick, 138 Mo.App. 100; Dilbeck v. Johnson, 129 S.W.2d 885; Mirick v. Booten, 262 S.W. 1038, 304 Mo. 1; Osage Inv. Co. v. Sigriest, 250 S.W. 39, 298 Mo. 139; Chilton v. Cady, 250 S.W. 403, 298 Mo. 101. (3) The motion stated a cause of action of petitioner's right of reverter or right of re-entry after the death of the life tenant without issue, her surviving. Shee v. Boone, 243 S.W. 882, 295 Mo. 212; Mo. Central Bldg. & Loan Assn. v. Evler, 141 S.W. 877, 237 Mo. 679; Vance v. Humphreys, 241 S.W. 91, 210 Mo.App. 498; Post v. Cavender, 12 Mo.App. 20; Inlow v. Herren, 267 S.W. 893, 306 Mo. 42; Fanning v. Doan, 128 Mo. 323; Owens v. Trail, 258 S.W. 699, 302 Mo. 292; Vantage Mining Co. v. Baker, 155 S.W. 466, 170 Mo.App. 457; 21 C. J., Estates, sec. 179, sec. 181, p. 1018, sec. 180; 68 C. J., Wills, sec. 115; 18 C. J., Deeds, sec. 41, p. 161; 19 C. J., Ejectment, sec. 22, p. 1045; 5 C. J., Assignments, sec. 16, p. 852, sec. 18, p. 857; Upington v. Corrigan, 151 N.Y. 143, 45 N.E. 359, 37 L. R. A. 794; Nicoll v. Ry. Co., 12 N.Y. 121; Vail v. Ry. Co., 106 N.Y. 287, 60 Am. Rep. 440, 13 N.E. 607; Powers v. Bullwinkle, 33 S.C. 293, 11 S.E. 971; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Collins v. Whitney, 222 S.W. 840, 283 Mo. 383. Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587; Hobbs v. Yeager, 263 S.W. 225; University City v. Ry. Co., 149 S.W.2d 321; 68 C. J., Wills, sec. 112, p. 497, sec. 115, p. 499; 114 A. L. R. 602; 109 A. L. R. 1148; 77 A. L. R. 344; 60 L. R. A. 750; p. 1157 et seq. of 109 A. L. R.; Rose v. Franklin L. Ins. Co., 132 S.W. 612, 153 Mo.App. 90; State v. Wolfner, 2 S.W.2d 589, 318 Mo. 1068; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909, 336 Mo. 1000. (4) The deeds were not testamentary in character but conveyed a present irrevocable interest. Goins v. Melton, 121 S.W.2d 821; Christ v. Kuehne, 172 Mo. 118; Wimpey v. Ledford, 177 S.W. 302; O'Day v. Meadows, 194 Mo. 588, 92 S.W. 637; Simms v. Brown, 158 S.W. 624, 252 Mo. 58; Dawson v. Taylor, 214 S.W. 852; Priest v. McFarland, 171 S.W. 62, 262 Mo. 229; Hudspeth v. Grunke, 214 S.W. 865; Crites v. Crites, 225 S.W. 990; Stubbings v. Ins. Co., 229 S.W. 407; McAlister v. Pritchard, 230 S.W. 66, 287 Mo. 494; Owen v. Trail, 258 S.W. 699, 302 Mo. 292. (5) Petitioner as the holder of assigned tax certificates of purchase, and certificates held in his own right as purchaser at tax sale, had a right to intervene. Byars v. Howe, 276 S.W. 43; Bush v. Block, 187 S.W. 153, 193 Mo.App. 704; Wegenha v. St. Joseph, 213 S.W. 71; Carter v. Mills, 30 Mo. 432; Scoggin v. Goff, 137 S.W.2d 694; Lortz v. Rose, 145 S.W.2d 385.

Paul D. Kitt and James W. Davis for respondents.

(1) The pleadings determine whether a suit to ascertain and determine title is in equity or at law. Dinkelman v. Hovekamp, 336 Mo. 567, 80 S.W.2d 681. (2) The second amended motion filed by appellant is in effect a petition of intervention and was filed after judgment was entered and after the term of the circuit court, at which judgment in this case was entered; this is not permitted since an intervention cannot be filed after judgment has been rendered. Zeitinger v. Hargadine-McKittrick Dry Goods Co. (Houts Intervener), 250 S.W. 913, 298 Mo. 461. (3) The motion or petition of intervention filed by the appellant states no cause of action and shows that the appellant has no interest in this land on the ground as claimed by appellant that as an heir of Alexander Dockery and Nancy Elizabeth Woldridge, that the possibility of reverter in Alexander Dockery and Nancy Elizabeth Woldridge passed to appellant. Alexander Dockery and Nancy Elizabeth Woldridge had a reversion, a vested reversionary estate, not a possibility of reverter. Sec. 3500, R. S. 1939; Lewis v. Lewis, 136 S.W.2d 66; Hobbs v. Yager, 263 S.W. 225; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Collins v. Whitman, 283 Mo. 383, 222 S.W. 840; Schee v. Boone, 243 S.W. 882; 21 C. J., sec. 181, p. 1018; Norman v. Horton, 126 S.W.2d 187; Chew v. Keeler, 100 Mo. 362; Rodney v. Landau, 104 Mo. l. c. 257; Buxton v. Kroeger, 219 Mo. 224; Eckle v. Ryland, 256 Mo. l. c. 453; Gardner v. Vanlandingham, 69 S.W.2d 947. (4) The deeds executed by Alexander Dockery and Nancy Elizabeth Woldridge were testamentary in character, and for that reason were void. Terry v. Glover, 235 Mo. 544, 139 S.W. 337; Thorp v. Daniel, 99 S.W.2d l. c. 44, par. 1-2. (5) The appellant, as assignee of tax certificates and as holder of tax certificates as purchaser at tax sales, gave appellant no right to intervene, since appellant's claims, as assignee of tax certificates, and as holder of tax certificates as purchaser at tax sale, are the basis for and are the assertion by appellant of an independent controversy, and serves as an independent claim by appellant to the subject matter of this suit which cannot be done. 21 C. J., secs. 341-342, pp. 343, 344; Mountain Grove Creamery, Poultry & Produce Co. v. Willow Springs Creamery Co. et al. (Green Hills Creamery Co. Intervener), 202 S.W. 1054; Monticello Bldg. Corp. v. Monticello Ins. Co., 52 S.W.2d 545, 330 Mo. 1128; West v. East Coast Cedar Co., 101 Fed. l. c. 622; 47 C. J., Title Partition, sec. 285, p. 387.

OPINION

Tipton, P. J.

The appellant filed a motion to allow him to intervene in the case of Arch B. Davis, Executor of the estate of W. W. Davis, deceased, et al., v. W. E. Austin, administrator with the will annexed of the estate of E. M. Harber, deceased, et al., pending in the Circuit Court of Livington County, Missouri. This motion was filed after the trial court had entered a judgment determining title to the land described in count one of the plaintiffs' petition, and had also entered an interlocutory judgment of partition under count two of the plaintiffs' petition. This motion stated the facts showing the appellant's interest to a part of the land described in plaintiffs' petition. The plaintiffs and defendants filed separate motions to strike appellant's motion, which were sustained by the trial court for the reason that the facts stated in appellant's motion to intervene show he has no interest in the land in controversy. From this action of the trial court the appellant has appealed to this court.

A. M. Dockery is the common source of title to that part of the land described in plaintiffs' petition in which appellant claims to have an interest. The essential facts as stated in appellant's motion are, that by his two deeds dated June 24, 1901, Alexander Dockery conveyed a portion of the land in controversy to Nancy E. Woldridge (his daughter). On October 4, 1902, Nancy E. Woldridge conveyed these lands to Allie M. Hunter and the heirs of her body. The grantee in this deed was the daughter of the grantor. In other words, the grantee was the granddaughter of Alexander Dockery. On February 26, 1902, Alexander Dockery conveyed to Allie M. Hunter and her bodily heirs, the balance of the land in which appellant claims to have an interest. Plaintiffs and defendants are the remote grantees of Allie M. Hunter. Appellant claims a one-sixth interest in the land as heir of Alexander Dockery and Nancy E. Woldridge.

W. J Dockery was the father of the appellant and a brother of Alexander Dockery. Alexander had but one child, Nancy...